Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of In Re: PPC Circus Bar, No. SA 901-84, dated October 19, 1984.
Eileen S. Maunus, Assistant Counsel, for appellant.
Gary F. DiVito, Chief Counsel, for appellee.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 96 Pa. Commw. Page 115]
The Pennsylvania Liquor Control Board (Board) appeals the order of the Court of Common Pleas of Allegheny County (trial court) which reversed and set aside the Board's order imposing a fine of $250 on PPC Circus
[ 96 Pa. Commw. Page 116]
Bar, Inc. (PPC) for permitting gambling on licensed premises.*fn1
A Board undercover agent testified before the trial court that, upon his arrival at PPC's premises at approximately 7:00 p.m. on July 16, 1983, he witnessed the barmaid playing an electronic poker machine (machine) and observed that the machine reflected that a "score" of between thirty to forty "free" games had been accumulated. The barmaid continued to play for approximately fifteen minutes, occasionally leaving the machine to serve patrons and then resuming play. Upon accumulating a total of eighty "free" games, the barmaid reached her hand to the right side of the machine and performed an operation which cleared the eighty games off the machine.*fn2 Next, she recorded a $20 win in the cash register, removed a $20 bill from an envelope therein and made a notation on the envelope. She then placed the $20 in her pocket.
The trial court concluded that the agent's testimony failed to support the Board's conclusion that the activity described constituted gambling. On appeal, the Board
[ 96 Pa. Commw. Page 117]
contends that the trial court committed an error of law and abused its discretion in reaching that conclusion.*fn3
Before the trial court, it was the Board's burden to prove that gambling had occurred as charged on PPC's premises by a clear preponderance of the evidence. In Re: Omicron Enterprises, 68 Pa. Commonwealth Ct. 568, 449 A.2d 857 (1982). Accordingly, the Board's evidence had to show that the three elements of gambling were present in the barmaid's activities, i.e., consideration, chance and reward. Acorn Club. The Board's witness did this. On the other hand, PPC presented no evidence whatsoever to the trial court. We believe, therefore, ...